[StBernard] Hurricane Katrina flooding in Lower 9th Ward, St. Bernard Parish heading to court

[Westley Annis]

Hurricane Katrina flooding in Lower 9th Ward, St. Bernard Parish heading to
court

Published: Monday, September 10, 2012, 7:10 AM     Updated: Monday,
September 10, 2012, 7:11 AM

 By Mark Schleifstein, The Times-Picayune 

It may seem like an academic question. But hundreds of millions of dollars
may ride on the answer: Was the Lower 9th Ward in New Orleans flooded during
Hurricane Katrina simply because water overtopped floodwalls along the
Industrial Canal, causing failures in two places, or had those walls been
compromised by work on a nearby lock? That is the question at the heart of a
federal trial beginning Wednesday.

Attorneys representing residents of the Lower 9th Ward and parts of St.
Bernard Parish claim that when Washington International Group Inc., an Army
Corps of Engineers contractor, removed several buildings and dozens of
pilings from a swath of land inside the canal as part of a plan to expand
the canal's shipping lock, the company inadequately plugged the holes left
behind. That allowed Hurricane Katrina's surge to seep beneath the
14-foot-high floodwall, significantly contributing to its failure, they
argue.

Lawyers representing the corps and Washington Group blame the wall failures
on floodwaters overtopping the walls and then falling onto the earthen levee
the walls were built into. The waterfall created a 7-foot-deep ditch along
the levee; that, combined with the weight of the water pushing against the
wall, caused the two sections of wall to fall over. A concrete apron now
protects the rebuilt sections of levee from the erosion a similar
overtopping event could cause.

While both arguments lay blame with the corps and its contractors, if U.S.
District Judge Stanwood Duval Jr. finds that the breaches resulted only from
overtopping, the corps and its contractor would be immune from damages.

That's because Duval has already ruled that the 1928 Flood Control Act gives
the corps immunity from flooding caused by the failure of its
flood-protection projects, even when the failure results from negligence.

But if Duval rules that expanding the lock project helped cause the wall
failures, the corps and Washington Group would likely be held liable for
damages, since the lock project is not a flood-control project.

In a 2009 decision in a related Katrina case, Duval found the corps' failure
to maintain the rapidly eroding Mississippi River-Gulf Outlet along the
eastern edge of St. Bernard Parish was responsible for part of the flooding
of the Lower 9th Ward and St. Bernard Parish. Duval likened the corps'
inaction on the MR-GO to a Navy captain failing to maintain a ship that
crashes through a levee.

But he also found that the first-floor flooding in the Lower 9th Ward, and
possibly the parts of St. Bernard closest to the Industrial Canal, were not
the result of water coming from the MR-GO and thus not eligible for payment
as part of that case.

If he rules in favor of Lower 9th Ward residents in the new trial, however,
they will be compensated for first-floor damage.

Seepage and surge

In legal briefs, attorneys representing the Lower 9th Ward residents have
said they will present evidence showing that the corps and Washington Group
failed to conduct an adequate geotechnical site assessment; failed to fully
evaluate the impact of the work on the wall; and created or exacerbated
subsurface pathways for Katrina's surge to place pressure on the wall,
contributing to its failure.

"Instead of backfilling and properly compacting every excavation, WGI did
not backfill certain excavations at all and backfilled others with permeable
sands," according to the brief. At some locations, it says, workers "merely
tamped down the soil with the bucket of a backhoe or did not compact it at
all."

In support of their arguments, the attorneys plan to call University of
California at Berkeley engineering professor Robert Bea, co-leader of a team
of independent researchers who conducted a forensic investigation of
failures of levees and floodwalls during Katrina. According to the brief,
Bea will testify that seepage and uplifting caused by surge from the canal
moved parts of the floodwall at the northern breach location, causing
openings between vertical joints in the wall's concrete panels.

Surge had a similar effect on the wall at the southern breach, with a
tension crack forming on the water side of the floodwall between the metal
sheet piles on which the wall was built and the earthen levee. There, Bea
will testify, the wall failed despite the survival of an adjacent segment
that was overtopped but did not experience seepage, according to the brief.

Competing forensic studies

Justice Department attorneys representing the corps counter that they will
show Bea's analysis incorrectly calculated the forces placed by the surge
waters on the underground soil formations, and that the corps conducted an
assessment of the potential effects of seepage before the Washington Group
work that indicated it would cause no harm to the wall.

The attorneys also will rely on a forensic study of the floodwall failure
conducted by the official Independent Performance Evaluation Task Force
appointed by the Department of Defense in the aftermath of Katrina. That
study concluded that clay and peat layers beneath the wall were impermeable
and that seepage played no role in the wall failures.

Instead, that panel found that the north breach occurred at about 5 a.m.,
before overtopping, when the weight of water in the canal pushed the wall
outward, forming a gap between the wall and the levee. Water entered the gap
and increased the load on the wall, ultimately causing its failure. The
southern segment of the wall failed when water overtopped it, eroding the
levee holding it in place.

The government's attorneys also plan to argue that when the Industrial Canal
lock was authorized by Congress in 1923 and the expansion was authorized in
1956, the lock served a dual purpose of navigation and flood control.

The trial is expected to last 60 days.

Ruling against corps upheld

Meanwhile, Duval's ruling against the corps in the earlier MR-GO trial --
which could cost the corps up to $20 billion -- was upheld by a three-judge
panel of the U.S. 5th Circuit Court of Appeals in March.

Justice attorneys have asked that the appeal be reconsidered "en banc" by
all of its 17 active judges, but the court has not said whether it will do
so.

A separate lawsuit by St. Bernard Parish and parish residents against the
corps, alleging that the construction of the MR-GO represented an illegal
"taking" of the value of their land, is awaiting a decision by U.S. Court of
Federal Claims Judge Susan Braden.

The trial in that case was completed in December 2011.

Mark Schleifstein can be reached at mschleifstein at timespicayune.com or
504.826.3327.

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